[Congressional Record Volume 144, Number 129 (Thursday, September 24, 1998)]
[Senate]
[Pages S10921-S10923]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself, Mr. Jeffords, Mrs. Hutchinson, Mr. 
        Feingold, Ms. Moseley-Braun, Mr. Moynihan, Mr. Gregg, Mr. 
        Sarbanes, Mr. Cleland, and Mr. Dodd):
  S. 2514. A bill to amend the Communications Act of 1934 to clarify 
State and local authority to regulate the placement, construction, and 
modification of broadcast transmission and telecommunications 
facilities, and for other purposes; to the Committee on Commerce, 
Science, and Transportation.


                     TELECOMMUNICATIONS LEGISLATION

 Mr. LEAHY. Mr. President, I am pleased to continue my strong 
objections to proposed Federal Communications Commission rules that 
could rob states and communities of the authority to decide where 
unsightly telecommunications towers should be built.
  I am one of five Senators who voted against the Telecommunications 
Act of 1996. One of my fears was that the will and voice of states and 
local communities would be muzzled if that bill became law. 
Unfortunately, with the passage and implementation of the 
Telecommunications Act, my fears have been confirmed.
  Mayors and citizens in Vermont towns and in towns across this nation 
are outraged that they have little control over the construction of 
these towers. This is especially troubling when communications 
technology is advancing so rapidly that large towers may become 
obsolete.
  For example, some wireless phone providers offer the older analog 
wireless service. That is now being replaced by digital phone service 
in many parts of the nation. Analog providers could provide towerless 
service to towns by using an array of small antennas, instead of a 
large tower. Phone companies prefer to build one large tower with its 
switching equipment because that is cheaper than the switching 
equipment needed to control an array of small antennas. However, if a 
town does not want its landscape ruined with a tower, I think the 
company should be required to offer service through these smaller 
antennas.
  Second, for companies offering the ``newer'' digital wireless phone 
service, other technologies are eliminating the need for large towers. 
The Iridium Corporation will offer phone service throughout the United 
States in the near future that is based on more than 60 low-earth-orbit 
satellites. Over time, this will provide a satellite communications 
link from any place in the world, even where no tower-based system is 
available.
  In areas of the United States outside the range of cellular coverage 
the Iridium phone will connect you directly to the Iridium satellite 
network. Emergency communications--911 and disaster assistance--will be 
greatly aided with this development.
  Hospitals, ambulances and other emergency service providers will be 
linked together by satellite directly from a hand held phone.
  The Wall Street Journal reports that this service will cost more than 
regular cell phone service. However, they also report that other 
competitors and more efficiencies of scale are likely to bring down 
costs over time.
  In addition, I have previously discussed how the towerless PCS-Over-
Cable technology provides digital cellular phone service by using small 
antennas rather than large towers. These small antennas can be quickly 
attached to existing telephone poles, lamp posts or buildings and can 
provide quality wireless phone service without the use of towers. This 
technology is cheaper than most tower technology in part because the 
PCS-Over-Cable wireless provider does not have to purchase land to 
erect large towers.
  Since there are viable and reasonable alternatives to providing 
wireless phone service through the use of towers, I think that towns 
should have some say in this matter. And I think that mayors, town 
officials and local citizens will agree with me.
  Why should a large tower be forced on a town when wireless phone 
service can be provided without using a tower? Indeed, many argue that 
towerless phone service is much better in a disaster situation. During 
New England's ice storm, I am told that some towers collapsed. 
Tornadoes, earthquakes or hurricanes can destroy large telephone 
towers. But satellite phone service would not be affected by these 
disasters. Also, the PCS-Over-Cable technology is much less likely to 
be out of service for large areas during a disaster as compared to 
wireless phone service provided by large towers.
  In addition, other advances in communications technology may also 
make towers obsolete even faster than anticipated.
  This is one reason why I am so concerned about the federal government 
taking away the power of local communities to control where these 
towers are located. When big, unsightly towers are proposed to be 
located in the wrong place, towns should be able to just say no. And if 
the rules proposed by the FCC are implemented, towns will be further 
marginalized and even lose their input as to where the towers are 
placed.
  As I have said before, I do not want Vermont turned into a 
pincushion, with 200 foot towers indiscriminately sprouting up on every 
mountain and in every valley. I have heard from many Vermonters, as 
well as town leaders and citizens from across the country, who are 
justifiably afraid that they are losing control over the siting, 
design, and construction of telecommunications towers and related 
facilities. They feel that state and local concerns are being 
sacrificed to the interests of a small part of the telecommunications 
industry that uses large towers.
  Today I continue in my commitment to the preservation of state and 
local authority. I am joined by Senators Jeffords, Hutchinson, 
Moynihan, Feingold, Gregg, Moseley-Braun, Sarbanes, Dodd, and Cleland 
in introducing legislation which would repeal the authority of the FCC 
to preempt state and local regulations affecting the placement of new 
telecommunications towers. This legislation expands and improves upon 
S. 1350, which I introduced one year ago.
  Vermont communities and the state of Vermont must have a role in 
deciding where towers are going to go. They

[[Page S10922]]

must be able to take into account the protection of Vermont's scenic 
beauty. This is true for other states as well.
  In fact, by requiring the companies to work with Vermont towns, 
acceptable alternative locations of towers, acceptable co-location of 
antennas on existing towers, or the use of alternative towerless 
technology, could be suggested. This would be much better than allowing 
any company to just come in willy-nilly and plop down towers next to 
our backyards.
  In my view passage of this bill will actually promote better 
emergency phone service, better phone service in disasters and the more 
advanced digital wireless phone service.
  The bill I am introducing today will mandate that states and towns 
cannot be ignored in the spread of telecommunications towers. This bill 
will recognize that states and towns do have choices in this cellular 
age.
  This bill also incorporates the concerns of the aviation industry. 
The Federal Aviation Administration presently does not have authority 
to regulate the siting of towers. Airport officials work with local 
governments in the siting of towers. Silencing local governments will 
have a direct effect on airline safety, according to the 
representatives of the airline industry that we have heard from.
  In a comment letter responding to the FCC's proposed rule, the 
National Association of State Aviation Officials attacked preemption on 
the grounds that it ``is contrary to the most fundamental principles of 
aviation safety * * * the proposed rule could result in the creation of 
hazards to aircraft and passengers at airports across the United 
States, as well as jeopardize safety on the ground.'' I cannot think of 
anyone who would want towers constructed irrespective of the negative 
and potentially dangerous impacts they may have on airplane flight and 
landing patterns.
  Make no mistake. I am for progress, but not for ill-considered, so-
called progress at the expense of Vermont families, towns and 
homeowners. Vermont can protect its rural and natural beauty while 
still providing for the amazing opportunities offered by these 
technological advances.
  To deprive states of the ability to protect their land from unsightly 
towers is wrong, and the FCC rules should not stand. My legislation 
would reaffirm that states have a role to play in where 
telecommunications towers are placed and providing alternates to 
wireless providers.
  I ask unanimous consent that this new legislation be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2514

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. FINDINGS AND PURPOSES.

       (a) Findings.--Congress makes the following findings:
       (1) The placement of commercial telecommunications, radio, 
     or television towers near homes can greatly reduce the value 
     of such homes, destroy the views from such homes, and reduce 
     substantially the desire to live in such homes.
       (2) States and localities should be able to exercise 
     control over the siting and modification of such towers 
     through the use of zoning, planned growth, and other controls 
     relating to the protection of the environment and public 
     safety.
       (3) There are alternatives to the construction of towers to 
     meet telecommunications and broadcast needs, including the 
     co-location of antennae on existing towers or structures, 
     towerless PCS-Over-Cable telephone service, satellite 
     television systems, low-Earth orbit satellite communication 
     networks, and other alternative technologies.
       (4) There are alternative methods of designing towers to 
     meet telecommunications and broadcast needs, including the 
     use of small towers that do not require blinking aircraft 
     safety lights, break skylines, or protrude above tree 
     canopies and that are camouflaged or disguised to blend with 
     their surroundings, or both.
       (5) On August 19, 1997, the Federal Communications 
     Commission issued a proposed rule, MM Docket No. 97-182, 
     which would preempt the application of State and local zoning 
     and land use ordinances regarding the placement of broadcast 
     transmission facilities. It is in the interest of the Nation 
     that the Commission not adopt this rule.
       (6) It is in the interest of the Nation that the memoranda 
     opinions and orders and proposed rules of the Commission with 
     respect to application of certain ordinances to the placement 
     of such towers (WT Docket No. 97-192, ET Docket No. 93-62, 
     RM-8577, and FCC 97-303, 62 F.R. 47960) be modified in order 
     to permit State and local governments to exercise their 
     zoning and land use authorities, and their power to protect 
     public health and safety, to regulate the placement of 
     telecommunications or broadcast towers and to place the 
     burden of proof in civil actions, and in actions before the 
     Commission relating to the placement of such towers, on the 
     person or entity that seeks to place, construct, or modify 
     such towers.
       (7) PCS-Over-Cable or satellite telecommunications systems, 
     including low-Earth orbit satellites, offer a significant 
     opportunity to provide so-called ``911'' emergency telephone 
     service throughout much of the United States.
       (8) According to the Comptroller General, the Commission 
     does not consider itself a health agency and turns to health 
     and radiation experts outside the Commission for guidance on 
     the issue of health effects of radio frequency exposure.
       (9) The Federal Aviation Administration does not have the 
     authority to regulate the siting of personal wireless 
     telephone or broadcast transmission towers near airports or 
     high-volume air traffic areas such as corridors of airspace 
     or commonly used flyways. The Commission's proposed rules to 
     preempt State and local zoning and land-use restrictions for 
     the siting of such towers will have a serious negative impact 
     on aviation safety, airport capacity and investment, and the 
     efficient use of navigable airspace.
       (b) Purposes.--The purposes of this Act are as follows:
       (1) To repeal certain limitations on State and local 
     authority regarding the placement, construction, and 
     modification of personal wireless service towers and related 
     facilities as such limitations arise under section 332(c)(7) 
     of the Communications Act of 1934 (47 U.S.C. 332(c)(7)).
       (2) To permit State and local governments--
       (A) in cases where the placement, construction, or 
     modification of personal wireless service telephone and 
     broadcast towers and other facilities is inconsistent with 
     State and local requirements or decisions, to require the use 
     of alternative telecommunication or broadcast technologies 
     when such alternative technologies are available; and
       (B) to regulate the placement of such towers so that their 
     location or modification will not interfere with the safe and 
     efficient use of public airspace or otherwise compromise or 
     endanger public safety.

     SEC. 2. STATE AND LOCAL AUTHORITY OVER PLACEMENT, 
                   CONSTRUCTION, AND MODIFICATION OF BROADCAST 
                   TRANSMISSION AND OTHER TELECOMMUNICATIONS 
                   FACILITIES.

       (a) Repeal of Limitations on Regulation of Personal 
     Wireless Facilities.--Section 332(c)(7)(B) of the 
     Communications Act of 1934 (47 U.S.C. 332(c)(7)(B)) is 
     amended--
       (1) in clause (i), by striking ``thereof--'' and all that 
     follows through the end and inserting ``thereof shall not 
     unreasonably discriminate among providers of functionally 
     equivalent services.'';
       (2) by striking clause (iv);
       (3) by redesignating clause (v) as clause (iv); and
       (4) in clause (iv), as so redesignated--
       (A) in the first sentence, by striking ``30 days after such 
     action or failure to act'' and inserting ``30 days after 
     exhaustion of any administrative remedies with respect to 
     such action or failure to act''; and
       (B) by striking the third sentence and inserting the 
     following: ``In any such action in which a person seeking to 
     place, construct, or modify a tower facility is a party, such 
     person shall bear the burden of proof.''.
       (b) Prohibition on Adoption of Rule Regarding Preemption of 
     State and Local Authority Over Broadcast Transmission 
     Facilities.--Notwithstanding any other provision of law, the 
     Federal Communications Commission may not adopt as a final 
     rule the proposed rule set forth in ``Preemption of State and 
     Local Zoning and Land Use Restrictions on Siting, Placement 
     and Construction of Broadcast Station Transmission 
     Facilities'', MM Docket No. 97-182, released August 19, 1997.
       (c) Authority Over Placement, Construction, and 
     Modification of Other Transmission Towers.--Part I of title 
     III of the Communications Act of 1934 (47 U.S.C. 301 et seq.) 
     is amended by adding at the end the following:

     ``SEC. 337. STATE AND LOCAL AUTHORITY OVER PLACEMENT, 
                   CONSTRUCTION, AND MODIFICATION OF 
                   TELECOMMUNICATIONS AND BROADCAST TOWERS.

       ``(a) In General.--Notwithstanding any other provision of 
     this Act, no provision of this Act may be interpreted to 
     authorize any person to place, construct, or modify a 
     broadcast tower or telecommunications tower in a manner that 
     is inconsistent with State or local law, or contrary to an 
     official decision of the appropriate State or local 
     government entity having authority to approve, license, 
     modify, or deny an application to place, construct, or modify 
     a tower, if alternate technology is capable of delivering the 
     broadcast or telecommunications signals without the use of a 
     tower.
       ``(b) Authority Regarding Production of Safety Studies.--No 
     provision of this Act may be interpreted to prohibit a State 
     or local government from--
       ``(1) requiring a person seeking authority to locate 
     telecommunications facilities or broadcast transmission 
     facilities within the jurisdiction of such government to 
     produce--

[[Page S10923]]

       ``(A) environmental studies, engineering reports, or other 
     documentation of the compliance of such facilities with radio 
     frequency exposure limits established by the Commission; and
       ``(B) documentation of the compliance of such facilities 
     with applicable Federal, State, and local aviation safety 
     standards or aviation obstruction standards regarding objects 
     effecting navigable airspace; or
       ``(2) refusing to grant authority to such person to locate 
     such facilities within the jurisdiction of such government if 
     such person fails to produce any studies, reports, or 
     documentation required under paragraph (1).''.
 Mrs. HUTCHISON. Mr. President, I am pleased to join forces 
with Senators Leahy and Jeffords to introduce legislation which 
confirms that zoning decisions should be the providence of local 
governments, not overseen by the Federal Communications Commission 
through the use of preemption authority.
  It has been my position for some time that the FCC does not have a 
role to play in local zoning, right of way management and franchising 
decisions. I fought hard during consideration of the Communications Act 
of 1996 to ensure that local governments have the right to exercise 
these fundamental authorities. The issues associated with the use and 
value of property, public and private, are most appropriately 
considered at the levels of government closest to the citizenry. Local 
governments can balance the needs of commerce and the use of property. 
If their judgment is subject to question, it should be reviewed by the 
court system. It should not be checked by a federal regulator, who is 
far less able to calculate the totality of a community's interest.
  This legislation is needed because local governments have contended 
with a proposed FCC rule to preempt local authority over the placement 
of broadcast towers. The rule, I understand, has been withdrawn as a 
result of an agreement between the FCC, local and state government 
interests and telecommunications industry interests under the auspices 
of the FCC's ``Local and State Government Advisory Committee.'' This 
agreement provides for facilities siting guidelines and informal 
dispute resolution. I applaud this agreement. I believe it represents 
the reality that local governments, in the main, do want to work 
cooperatively with telecommunications providers who want to serve the 
residents of a community.
  However, I believe that this legislation is still necessary. The FCC 
simply should not have the authority to preempt local zoning decisions.
  I look forward to working on the progress of this bill with my co-
sponsors and appreciate the opportunity to act in support of the 
exercise of local authority.
                                 ______